On March 6, 2025, the United Sections of the Italian Supreme Court of Cassation (civil division) issued an order (R.G.N. 17687/2024) upholding the application filed by M.G.K., an Eritrean citizen, against the judgment of the Rome Court of Appeal no. 1803 of March 13, 2024, which had rejected his claim, submitted along with other Eritrean nationals rescued at sea, for non-pecuniary damages arising from his detention on board the Italian Coast Guard vessel "Diciotti" between August 16 and 25, 2018. According to the Cassation Court, the appellant is entitled to compensation, the amount of which will have to be determined by the Rome Court of Appeal in a different composition.

The decision of the United Sections of the Cassation Court intervenes in a dispute that also involved, in separate proceedings, members of the Italian government who, in August 2018, had imposed a ban on access to Italian ports for irregular migrants rescued by state vessels or humanitarian NGO boats. Indeed, former Interior Minister Matteo Salvini faced criminal charges of kidnapping and abuse of power in the "Diciotti" incident. While the tribunal in Catania with jurisdiction over ministerial crimes had requested that Salvini stand trial, on March 19, 2019, the Senate (where Salvini was elected) voted to uphold his immunity.

Related cases: the "Gregoretti" and "Open Arms" criminal cases concerning Minister Salvini

It is helpful to recall that the "Diciotti" case is linked to other instances in which the Italian government prevented the disembarkation of migrants rescued at sea in implementation of rules adopted between 2018 and 2019 ("Security Decree I and II, supported by the Conte cabinet). In particular, this occurred for the Italian Coast Guard vessel "Gregoretti," which embarked around 60 migrants on July 25, 2019, and for a vessel operated by the Spanish NGO "Proactiva Open Arms," which had to keep around 150 migrants on board between August 1 and 20, 2019, as they were denied access to Italian territory on orders from government officials. In the "Gregoretti" case, the competent "tribunal of ministers" in Catania had requested that Minister Salvini stand trial, obtaining authorisation from the Senate to proceed in February 2020; however, the preliminary hearing judge in Catania later issued a judgment of no grounds to proceed, on the basis that "the fact did not exist." Even in the case arising from the rescue operations of the NGO vessel "Open Arms," the Senate had denied immunity to the government member (vote on July 30, 2020); in April 2021, the preliminary hearing judge had ordered Minister Salvini to stand trial for the crimes of kidnapping and abuse of power. Salvini was subsequently acquitted at first instance by the Palermo court on December 20, 2024, again with the formula "because the fact did not exist."

The appeal against the rulings of the Rome District Court and Court of Appeal

In 2018, M.G.K. and other Eritrean citizens on board the "Diciotti" filed a lawsuit in the Rome District Court seeking compensation from the Italian government for the damages suffered due to their forced detention on the vessel between August 16 and 25, 2019. The Court dismissed the claim, stating that the government's decision to delay indicating a safe place for the migrants to disembark and then not allowing disembarkation at the chosen port of Catania for a few more days should be considered a "political act," motivated by the need to manage tensions between Italy and Malta regarding their respective search and rescue (SAR) obligations in international waters and to review European Union rules on sharing the burden of hosting irregular migrants arriving in Europe. According to the Court, the Italian judiciary had no jurisdiction over such a political choice.

The first instance judgment was appealed to the Rome Court of Appeal. In its judgment no. 1803 of March 13, 2024, the Court of Appeal ruled that the government's decision to deny disembarkation to the migrants on the "Diciotti" could not be considered an unquestionable "political act," but rather an act of high administration required by international norms on maritime safety (the SOLAS and SAR conventions). However, the Court found no fault in the conduct of the Italian government and, therefore, rejected the claim for damages.

M.G.K. appealed this decision, alleging violations of Articles 13 (personal freedom), 24 (access to justice), 111 (fair trial), and 117.1 (compliance with international treaties) of the Italian Constitution, Article 5 of the European Convention on Human Rights (ECHR) (personal freedom), Article 6 of the EU Charter of Fundamental Rights (individual freedom and security), as well as Articles 7 and 14 of Directive 2008/115/EC (the Returns Directive). The fact that the appellants were deprived of their freedom for several days without legal justification is sufficient grounds for awarding them compensation. For its part, the Italian State asked the Cassation Court to reaffirm that the decision of the then-government (particularly the Interior Minister) not to promptly indicate the "place of safety" (POS) for disembarking the rescued migrants, as well as the subsequent prohibition of disembarkation after designating the port of Catania as the POS, should be considered a non-justiciable political act, from which no compensable damage can arise. The waiting period for migrants on board the Italian military vessel was justified by the need to reach a political clarification with the Maltese authorities and EU partners regarding the management of SAR operations and the "redistribution" of irregular migrants among various European countries.

Prohibiting disembarkation is not an act of State

The first point addressed by the United Sections of the Cassation Court is, therefore, to determine whether the Italian government's decision to prevent the disembarkation of migrants can be considered a "political act." According to the Cassation Court, for an act to be considered strictly political, it must possess specific subjective and objective characteristics, and its nature must be exceptional. From a subjective standpoint, it must emanate from a body entrusted with the highest-level direction and management of public affairs. Objectively, it must be a free act in terms of its purpose and concern the life of the State's public powers. Qualifying an act as "political" must be understood as exceptional. In fact, most government measures are subject to some legal norm, mainly when they affect individual rights. They are, therefore, generally subject to judicial review. The Cassation Court thus concludes that the refusal to indicate the POS and the subsequent prohibition of disembarkation imposed on the migrants cannot be considered political acts in an objective sense, shielded from judicial review, because, although attributable to the highest levels of government and specifically to the Interior Minister, they do not pertain "to the supreme general direction of the State considered in its unity and fundamental institutions." They are administrative acts, albeit inspired by political aims, and cannot be exempted from a legitimacy test carried out by a competent Court. In this case, the civil courts ensure the review since the measure affects subjective rights of constitutional value.

The inexcusable error of the state administration

The next step concerns the determination of "fault" on the part of the state institution that acted. According to the Court of Appeal, the State was not at fault because, on the one hand, the international regulations regarding the indication of the POS are complex and not unambiguous, so the days taken to make this determination cannot be considered unreasonable; on the other hand, the current regulations do not impose a deadline for defining the POS and proceeding with disembarkation operations. Apart from cases of imminent danger to life, individuals rescued at sea do not have a "right of disembarkation." The State must have time to balance all relevant factors (international dynamics and potential bilateral agreements, combating illegal immigration, protecting public order, etc.), in addition to technical and logistical considerations, while still being required to minimise the inconvenience for the individuals involved as much as possible. The Court of Appeal concluded that, despite causing considerable hardship to the migrants, their detention on the "Diciotti" did not give rise to liability for unjust damage.

However, according to the United Sections of the Cassation Court, this approach is incorrect. The starting point should not be the POS assignment and subsequent disembarkation but rather the obligation of rescue at sea, established by international customary law and reiterated in international and domestic legislation. In particular, the SAR Convention requires states intervening in the rescue of individuals at sea to indicate a POS. For the Italian legal system, this responsibility falls on the Interior Minister. A POS is a place where, among other things, the right to seek international protection can be exercised, and the identification procedures set forth in Article 10-ter of the Consolidated Immigration Act (Legislative Decree 286/1998) can be carried out. A ship, even if it is a Coast Guard vessel, cannot be considered a POS (in line with it, cf. Supreme Court of Cassation, criminal section, judgment 6626/2020, on the "Sea Watch" case - see 2021 Yearbook 2021, p. 200-1). The indication of a POS is an administrative act that the Ministry is required to perform without delay; the identification of the disembarkation location falls within the discretion of the government authorities, who may indicate a different but more plausible location, such as the one closest to the rescue operation, taking into account multiple "technical" needs. It is, therefore, incorrect to say that the rules in this area are unclear and ambiguous: they are clear insofar as political considerations, such as the control of migratory flows or national or European migration policies, must not condition them. These political considerations delayed the disembarkation in Catania of the approximately 150 migrants rescued for several days. These very political considerations should have remained extraneous to the decision-making scope in this case. Here lies the inexcusable error that the Italian authorities committed.

A violation of personal freedom. The Khlaifia case before the European Court of Human Rights

These considerations assume particular relevance in light of the specific value that the prohibition of disembarkation violated. Indeed, personal freedom was compressed, and it is the violation of this fundamental right – a theme almost absent from the judgment of the Rome Court of Appeal – that matters most, according to the Cassation Court, in concluding that the damage caused to the appellant entitles him to compensation under Article 2043 of the Civil Code (non-contractual liability for unjust damage).

The detention of migrants on the "Diciotti" vessel constituted an infringement of the right protected by Article 13 of the Constitution, as well as Articles 5 ECHR, 6 of the EU Charter of Fundamental Rights, 3 of the Universal Declaration of Human Rights, and 9 of the International Covenant on Civil and Political Rights.

Article 5 ECHR is particularly relevant in this case, as the judgments Khlaifia and Others v. Italy (Chamber, Khlaifia and Others v. Italy, no. 16483/12, September 1 2015, and Grand Chamber, Khlaifia and Others v. Italy [GC], no. 16483/12, December 15 2016; respectively 2016 Yearbook, p. 207 and 2017 Yearbook, p. 242) have already clarified how the "de facto" detention of migrants in reception facilities (assistance centres in Lampedusa or ships anchored in the port of Palermo) does not meet the strict requirements of legality and legitimacy set forth in Article 5 ECHR for limitations on personal freedom. According to the Cassation Court, "the absence of a judicial order or subsequent validation of the government's choices is sufficient in itself to affirm the arbitrariness of the detention of migrants under Article 5 ECHR," and therefore its contrariety to Article 13 of the Constitution. It is indeed excluded that the detention of migrants on the "Diciotti" can be understood as "lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition." (Article 5, paragraph f) ECHR). The arbitrary nature of the measure, not based on formal acts, constitutes a violation of Article 5 ECHR also from a procedural standpoint, as the chosen methods render the restrictive measure on personal freedom not subject to judicial review (Article 5.4 ECHR: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful").

The Court of Cassation disapproves the conclusion of the Rome Court of Appeal, which did not find any negligence or inexcusable error in the conduct of the state administration (Ministry of the Interior) that for ten days left the appellants waiting to disembark in a state of de facto detention and in conditions incompatible with respect for individual dignity, despite the clear obligation, deriving from explicit international norms, to promptly take charge of them in a safe place (whether this was the port of Catania, where the "Diciotti" remained for five days, or any other Italian port).

It is true that, in 2020, the Senate voted to uphold the criminal immunity of Interior Minister Salvini, a senator, for the crimes related to the "Diciotti" incident, including kidnapping. However, this decision, which is not subject to judicial review, concerns only Minister Salvini's criminal liability. It cannot extend to the liability of the public administration for unjust damage caused to the individuals who were the object of the wrongful act, especially if the damage suffered relates to the violation of an inviolable right such as personal freedom. On this point, too, the judgment of the Rome Court of Appeal is censured, as instead of focusing on the distinction between criminal liability (of the Minister) and civil liability (of the state administration), it seems to create a (dubious) separation between the Minister's civil liability and that of the state administrative apparatus.

The damage resulting from the deprivation of personal freedom and the right to compensation

The non-pecuniary damage arising from the approximately ten-day detention, not justified by any legally appreciable reason and attributable to an administration error, lies in the personal and social consequences of the administration's lack of respect for the right to individual freedom. Such damage does not require a high threshold of proof, as the sense of humiliation and psychological suffering connected to having to endure unjust coercion of one's freedom of movement is a common experience and easily inferable from the facts.

The final paragraphs of the judgment address a second defence raised by the State, whose representatives pointed out that the Court of Appeal had not discussed the objection challenging whether some of the appellants were truly shipwrecked individuals from the "Diciotti." The Cassation Court does not consider this point relevant, as the appealed judgment resolved the dispute on other grounds. In any case, the identity of the person to whom compensation may eventually be paid can be raised before the Court handling the remanded case.

Conclusions. Separating political dialectics from measures affecting human rights

The Cassation Court's judgment reaffirms a point that the Court of Appeal had also resolved in the same way: the decision not to grant the "Diciotti" a port of entry and the prohibition of disembarkation imposed on the migrants it had rescued are not political acts, but rather administrative acts that are part of a procedure clearly and sufficiently regulated by international and domestic law, having as its guiding principle the protection of the lives of individuals rescued at sea and their fundamental rights. It departs from the Court of Appeal's approach by adopting a more rigorous stance in assessing the obligations of government authorities to follow through on their international commitments towards individuals holding fundamental rights, including the right to personal freedom. Pursuing migration policy objectives at the national or international level cannot justify measures that result in unlawful restrictions on individual rights. If such measures are taken, the State is obliged to compensate the victims for the unjust damage they have suffered. The Cassation Court's decision relies on the European Court of Human Rights judgment in the Khlaifia and Others v. Italy case. On that occasion, the just satisfaction awarded by the Strasbourg Court to individuals subjected to a de facto detention for a few days in violation of Article 5 ECHR was € 2,500 per person. It can be assumed that the court handling the remanded case, should it rule in favour of M.G.K., may order the State to pay a similar amount.